AN ABSENCE OF ACCOUNTABILITY

CAPITOL CHAOS

Published 4:00 am, Sunday, June 8, 2008

The electronic vote-tally board in the California Assembly showed the apparent voting record of Mary Hayashi (D-Hayward) in real-time on AB 2818 on May 28, 2008. Duration: 0:45. Video excerpt courtesy CalChannel.com

Media: San Francisco Chronicle

Assemblywoman Mary Hayashi had no intention of voting for AB2818, a bill that the Castro Valley Democrat feared could undermine its stated goal of protecting affordable housing. But on May 28, she nearly approved it - without her knowledge, and without her presence on the Assembly floor.

As the roll call began, Hayashi was engaged in a budget subcommittee meeting on the Capitol's fourth floor. Suddenly, two floors below, the light next to her name on the big electronic voting board in the Assembly chamber turned green, a "yes" vote.

Seconds later, it turned red.

Then green.

Red.

Green.

Finally, after 22 seconds of alternating colors, the space next to Hayashi's name went blank.

While there are conflicting accounts of exactly what caused this dizzying sequence, this much is clear: Two people had their hands on Hayashi's voting switches during the roll call on AB2818 - and one was acting against her will.

"Ghost voting" was not the only disturbing episode as the Assembly took up 316 bills in the three days leading up to the deadline for measures to pass their house of origin. In the frenzied treadmill, there was little or no debate on most matters, important bills died when legislators failed to vote, and votes were being cast for members without their express consent.

Photo: RICH PEDRONCELLI

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The dome of the California Capitol buiding is seen against the setting sun Wednesday, Jan. 9, 2002. (AP Photo/Rich Pedroncelli)

The dome of the California Capitol buiding is seen against the setting sun Wednesday, Jan. 9, 2002. (AP Photo/Rich Pedroncelli)

Photo: RICH PEDRONCELLI

AN ABSENCE OF ACCOUNTABILITY

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In the Hayashi case, eyewitnesses said her initial "yes" vote was cast by Assemblyman Kevin de León, D-Los Angeles, an assistant majority floor leader who colleagues said had taken the liberty of voting for other missing members as bills were being rushed to beat the deadline.

"I don't recall it, but I don't deny it either," de León said of allegations that he voted for Hayashi on AB2818. He added that deadline-day floor sessions can get "chaotic and wacky," with "hundreds and hundreds of bills moving through."

Assemblywoman Loni Hancock, a Berkeley Democrat who knew of Hayashi's concerns with the bill, acknowledged intervening to prevent her colleague from being a potentially decisive vote for passage of a bill she opposed.

"I didn't even know who pushed the green button originally," Hancock said. "I was riveted on the screen, I was doing a million things ...but I saw the green light go on ... and I knew Mary didn't want to be the 41st vote."

The bill ultimately passed with two votes to spare, 43 to 32, with Hayashi among the five nonvoters. Assemblywoman Cathleen Gagliani, D-Stockton, then pulled the key out of her desk mate Hayashi's voting station.

This extraordinary tug-of-war was in brazen defiance of Assembly Rule 104, which states, "A member may not operate the voting switch of any other member."

Outside of the Capitol, voting for someone else is a felony subject to up to three years' imprisonment. In the Assembly, where the stakes of a single vote are significantly higher, it is a rule that is widely ignored. Members routinely ask their desk mates to cover for them when they are away from the floor, usually with instructions on how to vote on specific bills. But if they leave their keys in their voting machines while away from the desk, they risk having a party-line voting recorded, whether they like it or not - as Hayashi discovered to her chagrin.

"It sounds like what is kind of the normal way we go about things got out of control," newly minted Assembly Speaker Karen Bass, D-Baldwin Vista (Los Angeles County), said in a phone interview Thursday, when asked about reports of ghost voting, including the Hayashi incident. She promised to confront the matter at a closed-door Democratic caucus this week. "I hate that it had to come out this way, but it raised a red flag and I'm going to follow up."

De León acknowledged that he voted for his fellow Democrats at times, to help keep bills moving toward the 41 votes required for passage, but he emphasized that he would never knowingly cast a vote against a colleague's wishes. In the case of AB2818, de León said he was certain that he never discussed the bill with Hayashi, and was not aware of her position on it.

Asked about the ethics of voting for a colleague without specific knowledge of his or her position on a bill, de León noted that a legislator who did not like the way his or her vote was cast could later change it for the record. House rules allow an Assembly member to change his or her vote after a bill has been passed or rejected - up to the end of the day's session - as long as it does not alter the outcome.

"It's not like it's etched in stone," de León said. "It's like you go to your ATM machine - same thing - change your vote."

But not all legislators are eager to cast a yes or no vote, especially on the tough issues. In a practice that has been the focus of a series of Chronicle editorials since June 2002, many important bills were rejected when a potentially decisive number of Assembly members failed to vote.

For the nonvoters, "taking a walk" is the equivalent of voting "no," because passage requires a majority of all 80 Assembly members. There is a pattern to this walking: In the vast majority of cases, the bill involves something average Californians care about - often consumer or environmental protections - while powerful corporate interests stand in opposition. Legislators prefer to euphemistically refer to this practice of avoiding what they were elected to do - Take a stand! Make tough decisions! Vote! - as "laying off" a bill.

"This practice of laying off is one of my pet peeves in the Capitol," said Assemblyman Jared Huffman, a first-term San Rafael Democrat. "It's not a courtesy, it's not some lesser vote - it's a no."

Nonvoters delivered a death blow to Huffman's AB3011, which would have required California cell-phone companies to get a customer's consent before sharing his or her financial information with third parties. Landline companies are already subject to such privacy regulations.

Huffman said the AT&T lobbyists were out in force. They were aggressive, they were relentless and they were effective. "There are some powerful folks with an awful lot of influence in the Capitol," he observed. In the end, 22 members failed to vote, including some Democrats who might be expected to support a consumer privacy issue (see chart).

"AT&T never loses," said Lenny Goldberg, who lobbies for consumer and privacy issues. "They don't always win, but they never lose."

The telecom giant also prevailed in the Senate with the passive assistance of nonvoters. Sen. Sheila Kuehl's SB1423 would have prohibited phone companies from charging an extra fee for unlisted numbers, which the Santa Monica Democrat rightly cast as a privacy issue. "They (telecom lobbyists) really went to the wall to stop this," said Goldberg, who was working for the measure. At one point, they assigned one lobbyist to each member of the Appropriations Committee. On May 27, SB1423 died in the Senate on a 16-to-16 tie, with 8 nonvoters.

For the health insurance industry, particularly Blue Cross, target No. 1 in the Assembly was AB2805, authored by Fiona Ma in response to complaints from doctors and patients about the cumbersome process for reimbursement from preferred provider organizations. In too many cases, Ma said, the patients were, in effect, being asked to serve as billing administrators.

More than a dozen lobbyists were working the bill outside the Assembly floor as the deadline loomed. Many lawmakers waffled in the week before the final vote. On May 29, it was defeated: 30 voting yes, 16 voting no and 34 not voting.

"It just shows the power of the insurance industry," said Ma, a San Francisco Democrat.

If there is an overarching theme to the chaos of the last week in May - the ghost voting, the walks, the switched votes without footprints - it is the extent to which the systems in Sacramento allow politicians to avoid accountability. What Californians see in the official record - even in the live telecasts of proceedings on the California Channel - can be deceptive.

For example, the video of the May 28 vote on AB2818 would suggest that Hayashi was racked with indecision: green, red, green, red, green, then blank. In fact, she was opposed to the bill. Her staffers, who knew her position, watched the office TV monitor with puzzlement as the lights flickered between green and red. They bolted up to the fourth floor to alert her that something was amiss.

"How do you think that makes me feel?" Hayashi said, when asked about the vote. "The California Channel is totally airing this. They're probably thinking: 'What is wrong with Hayashi: Why can't she decide on this bill?' "

Hancock, who rescued Hayashi from a vote that would have been a double-cross to public-housing leaders in her district who were assured she would oppose 2818, said this was not the first time a key left in the voting machine resulted in a foul vote. Hancock herself was the victim when she was a freshman.

What is rare is for members to acknowledge such transgressions. The outrage over the infamous 2005 attempt by Sen. Carole Migden to cast a vote for one of her bills when it was in the Assembly was an aberration. When the violation is among members in the same house, within the same party, the pressure to close ranks is intense. At least one other Assembly Democrat privately told colleagues that he was the victim of a ghost vote against his will in the last week of May. He declined to be interviewed.

"I don't think in any way, shape or form anything malicious was intended here," Speaker Bass said Thursday, at which point she said she had yet to discuss the allegations with de León or Majority Leader Alberto Torrico, D-Fremont.

Torrico, whose new job is to oversee floor action, insisted by phone Thursday, "I'm not aware of any vote being cast against the will of a member. This is the first I've heard of it."

Torrico added that he believed Assembly members were in compliance with "the spirit of the rule" if they give consent to their colleagues to vote for them if they're away from the floor.

It's clear that the Assembly majority leader is not the only one who hasn't read the plain language of the rule: Members must cast their own vote.

Ma, who was elected in 2006 and holds the leadership position of majority whip, said she did not know that the rules explicitly forbid voting for another member. She said the ruling Democrats have "an understanding" that members who don't want people voting for them do not leave their keys in their voting station when they leave the floor.

"Some people don't let other people vote for them because they're in marginal seats and they have to be very careful about what they are voting for," Ma said of her colleagues who keep their voting keys with them.

"It's just amazing to me that they have these rules and they ignore them - what other body can do that?" said Bob Stern, president of the Center for Governmental Studies in Los Angeles and an author of the Political Reform Act of 1974. "When is the Legislature going to learn ... that people are watching?"

Editorial: What state lawmakers should do to fix a

broken system and abide by their own rules. G10

Allowing a silent death by not voting

By withholding their votes and "taking a walk," state legislators allow a bill to die. In the Assembly, a bill requires a simple majority of 41 of the 80 members to pass; in the Senate, that majority is 21. Often the bills address consumer or environmental issues, and a "no" vote may anger the electorate whereas the nonvote appears less at odds with a particular constituency. Not registering a vote allows the bill to die, often in response to powerful corporate lobbying, as surely as a "no" vote.

Cell Phone Privacy, Assembly Bill 3011

Author: Jared Huffman, D-San Rafael

Its goal: To require cell-phone companies to obtain a customer's consent before sharing a customer's financial information with third parties (similar to a requirement imposed on land-line companies).

Unlisted Phone Numbers, Senate bill1423

Its goal: To stop phone companies from gouging customers for having an unlisted number. As the author noted, the cost of unlisting a number is virtually nil in this digital age.

The vote: 16 yes, 16 no, 8 nonvoters.

Key opponents: AT&T, Verizon.

Its defeat means: You will continue to pay $1.25 or more a month to keep your number unlisted ... or take your chances that your phone company is not going to sell information about you to other companies.

Water Conservation, Assembly Bill 2153

Author: Paul Krekorian, D-Burbank

Its goal: To compel developers to install cost-efficient water conservation measures in new residential and commercial development. The measure would force developers either to show that their projects would not create a "net gain" in water use or to contribute to a fund for conservation projects.

Key opponents: California Chamber of Commerce, the building and construction industries.

The vote: 30 yes, 37 no, 13 nonvoters.

Its defeat means: California will continue to grow without knowing how it will meet its future water demands.

Medical Billing, Assembly bill 2805

Author: Fiona Ma, D-San Francisco

Its goal: To arrange for physicians to be reimbursed directly from preferred provider organizations, or PPOs, instead of forcing patients to pay the money up front and then seek reimbursement when they see an out-of-network doctor.

The vote: 30 yes, 16 no, 34 nonvoters.

Key opponents: The health insurance industry.

Its defeat means: It's going to remain as difficult as ever for consumers in PPOs to get reimbursed if they want to seek a second opinion or otherwise see an out-of-network specialist.

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